Session 3: Preventive Detention- A Necessary Evil?

By Preyoshi Bhattacharjee

The third session of CRCLP commenced on 30th August, 2019 with the engrossing topic of Preventive detention. The session began with a video clip showing the harrowing experience of preventive detention of Muhammad Amir Khan, author of the book ‘Framed as a Terrorist’, who spent fourteen years of his life in Jail for a crime he never committed.

The first speaker Deepika Sangwan from fifth year opened the discussion by explaining the difference between detention, arrest and custody. She also discussed the need for Article 22 in the Constitution and why the provisions for preventive detention were kept under Part III of the Constitution which comes with the title of Fundamental Rights. She also enlightened the students as to where did the Parliament gets power to make laws for preventive detention.

Manpreet from the Fifth year discussed the historical background of preventive detention and how in the case of R vs. Halliday, the Defence of Realm Act, 1914 was challenged as it contained provisions regarding preventive detention and the Court held the act to be valid as it was based on Doctrine of Necessity, making it a necessary evil. She also discussed about the post independence situation of the Preventive detention act, 1950 where it was challenged in the case of AK Gopalan vs. State of Madras where the Court again held the Act to be intra vires. She also deliberated upon the use of Preventive detention during emergency, when as many as one lakh seventy five thousand people were detained. She also discussed the 44th Amendment and why has it still not come into force, as also highlighted in the case of AN Ray vs. Union of India, where the Court also held the amendment to be valid but also outside its purview to enforce the same. She also pondered over the question of why the preventive detention law of India is considered a draconian law.

Then came the next speaker, Mayank Sharma from Third year discussed Article 22, where he first talked about the Miranda rights and the safeguards against arrest and then in what cases those safeguards would not be available, including the case of Preventive detention. He also discussed the safeguards against preventive detention and how they become futile due to clause 7 of Article 22. After this Dipika from fifth year enlightened the students about the various acts which have the provision for preventive detention like- UAPA, TADA, POTA, COFEPOSA, MISA, NSA etc.

Towards the end of the session and before the conclusion by Prabhat, the students were acquainted with the parable of the boiling frog by Ananya Sharma- “The premise is that if a frog is put suddenly into boiling water, it will jump out, but if the frog is put in tepid water which is then brought to a boil slowly, it will not perceive the danger and will be cooked to death.”

Prabhat from fifth year gave the conclusion by discussing the Batla House case and UAPA and how it could be used by the government for its own benefit. He ended the discussion with a suggestion for using preventive detention stringently in the cases of economic offenders. Overall it proved to be an engaging and informative session for the students. The session ended after suggestions were taken from the students.

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